Asked about his first sexual
experience by an interviewer, Reverend Jerry Falwell said, "I never really expected to make it with
Mom, but then after she showed all the other guys in town such a good
time, I thought 'What the hell!'" Falwell went on to describe a a
Campari-fueled sexual encounter with his mother in an outhouse near
Lynchburg, Virginia. Neither the incestuous sex nor the interview
ever happened, of course. They sprang from the imagination of a
parody writer for Hustler
Magazine. When the Campari parody ad
appeared in the November
1983 issue of Hustler, the
founder of the politically-engaged organization Moral Majority sued,
alleging defamation and intentional infliction of emotional
distress. The trial and appeals that followed would provide great
theater, produce a landmark Supreme Court ruling on the First
Amendment, and eventually lead to one of the most unlikely of
friendships.

Shortly after his discharge from the Navy at age 22, Larry Flynt
launched a career in the adult entertainment business that would,
within just over a decade, make him one of the nation's best known
pornographers. When recession pushed his string of Ohio-based
strip clubs toward bankruptcy in 1974, Flynt turned what had been a
black-and-white newsletter called the "Hustler Newsletter" into the
most sexually explicit magazine in the United States. The
publication in August 1975 issue of nude photos of Jackie Kennedy
Onassis brought attention and dramatically increased sales for Hustler. Obscenity
trials soon followed, including one in Georgia, where Flynt was shot
and paralyzed by a white supremacist outraged by photos in Hustler
showing an interracial couple.

Flynt's growing pornography empire also attracted criticism from many
religious leaders, including the the Reverend Jerry Falwell. Falwell
co-founded the socially conservative and politically active Moral
Majority in 1979, an organization that was credited with helping to
elect Ronald Reagan the next year. Falwell promoted an
anti-abortion, anti-gay, pro-Israel agenda. He was especially
outspoken in his criticism of pornography, which he claimed threatened
the moral health of the country.

In August 1983, Flynt and a group of editors
and lawyers met
in the conference room of Larry Flynt Publications in Los Angeles.The group debated an idea for an ad parody
that had been
suggested by a
consultant named Michael Salzbury.Salzbury
proposed a parody of the well-known
advertisements for Campari,
which featured celebrities relating their “first times” (playing on the
obvious
double-entendre) drinking the popular liqueur.The
parody, as the idea was developed, had Jerry Falwell
recounting his
“first time,” which turned out not to be not his first taste of
Campari, but
rather his first sexual encounter—a drunken adventure with his mother
in an
outhouse.Falwell’s anti-pornography
crusade always made him an inviting target for Hustler
satire, and the group was especially enthusiastic about the
parody ad because of what they saw as the humorous contrast between the
outhouse encounter and the actual lifestyle of the evangelical
teetotaler.In the ad, Falwell is quoted
as saying, "We were drunk off our God-fearing asses on Campari...and
Mom looked better than a Baptist whore with a $100 donation." At the
insistence of legal
counsel, the group
agreed to place at the bottom of the ad the words: "Ad parody.
Not
to be taken seriously."

As he left a Washington,
D. C. news conference in November 1983, Falwell was asked by a reporter
whether
he had seen the parody ad featuring in the latest issue of Hustler. He
glanced
at the ad and brushed off the reporter’s question.Back home in Lynchburg
later that day, however, Falwell
asked a staff member to buy the current issue of the magazine.Falwell later testified that when he saw
the
parody ad, “I think I have never been as angry as I was at that moment.”He never believed, he said, that “human
beings could do something like this” and “felt like weeping.” The
most
troubling aspect of the satire, according to Falwell, was “the
besmirching and
defiling of my dear mother's memory.”

Falwell decided to sue Larry Flynt and
Hustler Magazine for
$45 million.To raise money for the
legal effort, Falwell send out two mailings.The
first, addressed to a half million members of the
Moral Majority
described the ad parody, while the second mailing to 30,000 “major
donors”
included (with eight offensive words blacked out) a copy of the actual
Campari
ad. Falwell's letter warned readers that "the billion-dollar sex
industry, of which Larry Flynt is the self-described leader, is preying
on innocent, impressionable children to feed the lust of depraved
adults." The letter concluded with a request: "Will you help me
defend myself against the smears and slander of this major pornographic
magazine--will you send me a gift of $500 so that we may take up this
important legal battle?" The two letters, plus a third letter
sent to 750,000 Old Time Gospel Hour fans, raked in over $717,000 to
fund Falwell's lawsuit.

Flynt counter-attacked in two ways.
First, he filed a copyright infringement suit against Falwell for
republishing Hustler's
Campari ad without permission. (The suit was later dismissed by a
federal district court in California on the grounds that Falwell's use
fell within the "fair use" exception under the Copyright Act.)
Second, to add fuel to the fire, Flynt ran the Campari parody ad
again--this time in Hustler's
March 1984 issue.

Falwell chose Norman Roy Grutman, a
flamboyant New York attorney who had previously successfully defended Penthouse Magazine against another
suit brought by Falwell, to represent him in his suit against
Flynt. Grutman's "gloves off" style of litigating struck Falwell
as just what was needed in a suit against someone he considered a world
class scumbag.

Grutman's complaint,
filed in federal court
the Falwell-friendly Western District of Virginia, alleged three
grounds for recovery: (1) the defendants used Falwell's name and
likeness for commercial purposes without consent; (2) the defendants
defamed Falwell by falsely accusing him of committing incest with his
mother; and (3) the defendants intentionally "inflicted emotional
distress" on Falwell through their malicious and outrageous publication
of the parody ad. Trial of the case would take place before Chief
Judge James Turk.

Allan Isaacman, a Harvard-trained lawyer
with a disarming "Huck-Finn-goes-to-law-school-quality"(1)
about him, took control of the defense. (The lawyers for the two
parties did not exactly hit it off. In his book Lawyers and Thieves, Roy Grutman
describes Isaacman as a "feret-faced attorney" with a "sharkskin"
wardrobe" who "sunk to the level of his client.") Isaacman's basic
strategy
to was to present the parody ad as nothing more than a simple
joke. Of course, to many people it seemed, it was not clear why
it was a joke--what's so funny about incest anyway? The answer,
as Isaacman developed his theme, was that the juxtaposition of a great
evangelist with the image of a drunken encounter in an outhouse was
obviously farcical and was intended, above all, to make a significant
political statement about Falwell's alleged hypocrisy.

A Memorable Deposition

Grutman's pre-trial
deposition of Flynt took place in a room at a federal prison in
North Carolina, where the pornographer was temporarily residing as the
result of a contempt of court conviction. It came a low point in
Flynt's life. He was paralyzed, depressed, bearded and unkempt,
suffering from painful bedsores, and on numerous medications.
Flynt was wearing blue pajamas and handcuffed to his hospital gurney as
he rolled in for his
deposition.

What followed ranks as perhaps the most
bizarre, vulgar, and self-destructive depositions in legal
history. It began with Flynt claiming or pretending to receive
"radio signals." Flynt interrupted a question from Grutman to
transmit a message to an unseen friend over his imaginary radio: "Bravo
November, bravo whiskey...Eleven bravo....They know what that means,
Bob. Can you give me an ETA on it?" Answers damaging to the
defense came in rapid succession and Isaacman seemed powerless to stop
them, as Flynt responded to Grutman's questions even when his attorney
said, "I instruct the witness not to answer that" (at more than one
point telling his attorney "to shut up.")

Flynt seemed eager to take responsibility
for the decision to place the parody ad: "Everything that has ever went
in Hustler should have had my approval, and anything that went in that
id not--the son of a bitch is either dead, got the shit kicked out of
him, or dead." Asked by Grutman whether he had "any information
that Reverend Falwell ever committed incest with his mother," Flynt
first claimed that the report came from Captain Joe Sivley of the
Bureau of Prisons and later stated that he had an affidavit signed by
three people from Lynchburg who witnessed the encounter from a nearby
house. He freely admitted that he ran the ad to "settle a score"
with Falwell for his criticism of his private life and said he included
the small disclaimer at the bottom only at the insistence of his
in-house lawyer (David Kahn), who Flynt identified only "that asshole
sitting over there." His goal was "to assassinate" Falwell's
integrity. Flynt claimed the actual content of the ad was a
collaborative effort that included the help, among others, of Billy
Idol, Yoko Ono, Ted Nugent, and Jimmy Carter.

Asked by Grutman whether he had an aversion
to organized religion, Flynt replied, "You better bet your sweet ass I
do." Does that go for the Bible too? "Goddamn right I
do." Flynt launched into his philosophy of pornography and argued
that he had been waging an unappreciated and secret war against child
pornography and child molesters. "What we got to stop doing is we
got to stop fucking with the kids, you know," he said in a serious
tone. "When you mess with the kids, we got a special place for
you, down here at the Rock." Flynt said efforts to combat child
molesters would be aided if Falwell was kept off the air: "Give him a
pack of seed corn and send him to Israel and let him tell them what
thou hath said."

The deposition deteriorated, ended with a
string of venomous attacks by Flynt on Grutman and his client.
Flynt warned Grutman, "You're all going to be on your knees before we
finish here." He alleged that Falwell had been behind the
assassination attempt on him in Georgia and issued a final threat: "I'm
no longer settling for psychological pain. You and Mr. Falwell
and the rest of the 'Falwellians' have to crawl back to New Orleans,
'cause I'm the real one."

Alan Isaacman's main focus, as the opening
of trial in Virginia loomed, was to get Flynt's off-the-wall deposition
thrown out. Isaacman feared what a jury might do if they watched
the angry and self-defeating videotaped performance by his
client. He sought to convince Judge Turk that Flynt the videotape
should be ruled inadmissible on the ground that Flynt was, at the time
of his deposition, mentally incompetent because he was on medication
and in the manic phase of a manic-depressive syndrome. Grutman
countered by arguing that the deposition should be admitted, with the
jury free to consider Flynt's mental state in deciding how much weight
to apply to his testimony. After a pre-trial hearing, Judge Turk
ruled in Flynt's favor and ordered the deposition excluded, only to
reverse himself on the first day of trial. The jury would see the
videotape.

Jerry Falwell Goes to Court

Cover of the November 1983 issue containing the
Campari parody ad

On December 4,
1984, Reverend
Jerry Falwell settled into the witness stand in Judge Turk's
Roanoke, Virginia courtroom. At Grutman's urging, Falwell
described his family's long history in Virginia, dating back to the
founding of Lynchburg in 1757. He told the jury about his
father's troubles with alcoholism and said, "Since I became a Christian
in 1952, I have been and am a teetotaler." Falwell described his
relationship with his mother as "very, very intimate" and said that she
was "a very godly woman, probably the closest to a saint that I have
ever known." After a series of questions that developed Falwell's
many ministerial accomplishments, Grutman returned to the subject of
Falwell's mother: "Mr. Falwell, specifically, did you and your mother
ever commit incest?" "Absolutely not," Falwell replied.

Falwell testified
about the political activism that had propelled him to become "the
second most-admired American behind the president." Asked whether
he "had attempted to influence public opinion against pornography,"
Falwell answered, "With every breath in my body." Grutman handed
Falwell copies of Hustler magazines and asked him to comment on various
cartoons and couplings found in the publication:

Did
you and Chief Justice Burger ever engaged in the kind of conduct
[sodomy] that is depicted in the December 1983 [cartoon]?
We have not.
Does [this magazine] contain pictures of lesbians?
It does.
Full color?
Full color.
Does it show naked women lewdly exposing themselves?
Yes.
Does it have pictures of interracial sex?
It does....

From his skewering
of Hustler generally, Grutman
turned his attention to the Campari ad. Falwell testified that
his anger over the ad had lasted "to this present moment." He
described his reaction as the most intense he had ever had in his
life. He admitted that if "Flynt had been nearby, I might have
physically reacted." The ad, according to Falwell, "is the most
hurtful, damaging, despicable, low-type personal attack that I can
imagine one human being can inflict upon another."

When Larry Flynt
took the witness stand on December 6, he looked far different than
the
man the jury saw in his videotaped deposition. He looked relaxed
and clean-cut in a three-piece suit. Isaacman asked Flynt to tell
the jury how he felt during his unfortunate encounter with Grutman five
months earlier: "I was in terrible pain...and I'd been in
solitary confinement for several months, handcuffed to my bed most of
the time." He testified that, under the weight of his paralysis
and mounting legal problems, he was suffering from paranoia and manic
depression "that can trigger things."

Turning to the
parody ad, Isaacman asked Flynt to explain how he hoped readers would
react. "Well, we wanted to poke fun at Campari for their
advertisements, because of the innuendos that they had," Flynt
said. The choice of Falwell for the ad was because "it is very
obvious that he wouldn't do any of those things; that they are not
true; that it's not to be taken seriously." The target was all
the more appropriate, Flynt argued, because of Falwell's political
activities: "There is a great deal of people in this country,
especially the ones that read Hustler
magazine, that feel that here should be a separation of church and
state. So, when something like this appears, it will give people
a chuckle. They know it was not intended to defame the Reverend
Falwell, his mother, or members of his family, because no one could
take it seriously." Flynt testified that Falwell was "good copy"
and that he bore no "personal animosity towards Reverend
Falwell."

In his
cross-examination, Grutman began by asking, "Is it the Larry Flynt that
we are seeing here today in court the real Larry Flynt, or is the real
Larry Flynt the one we saw on the television screen in your June 15
deposition?" Flynt answered calmly, "I'm more myself today than I
was then. And the reason why I didn't use any obscenities [in my
testimony] is I see no reason to offend this jury here."
Grutman's research had turned up a despicable statement in Flynt's past
and the attorney wanted the jury to know about it, the better to want
to punish him with a hefty award of damages. "In 1975, did you
give an interview in which you said, 'I like to lay beneath a glass
coffee table and--." Isaacman leaped to his feet with an
objection,
but Grutman continued to shout over him: "and watch my girl
shit--." "I would beg Your Honor, please," Isaacman
pleaded. Judge Turk said, "I'll let him ask the question and then
let's move on." Grutman plowed ahead with Flynt's stomach-turning
statement, which included not only an explicit description of excretory
functions, but also his"fantasy" about having anal intercourse with
ten-year-old paper boys and then slitting their throats with a
razor. Flynt tried gamely to explain the statement as "a bizarre
joke that had no more seriousness that the Jerry Falwell parody," but
one look at the jury could tell anyone that serious damage had been
done to the defense game plan. Later, Grutman asked Flynt about
another interview, one conducted for Vanity Fair in 1984: "Do you
remember saying of the Bible, 'This is the biggest piece of shit ever
written'?" Flynt could not recall the statement, but said he
could not deny having made it.

The plaintiffs
called a psychiatrist, Dr. Seymour Halleck to the stand. Dr.
Halleck offered his appraisal of what made Flynt tick: "[Flynt] sees
himself as a great human being fighting for noble causes and failing to
achieve greatness only because of the malice of others. At other
times, he sees himself as a hustler or a prankster who is not really
serious about anything....The most basic psychological characteristic
of Mr. Flynt is that he thrives on attention and being in the
limelight. The world of plots and counterplots he has created
with himself as the central figure is a world in which he cannot be
ignored."

The jury heard
from other witnesses. They listened to witnesses, such as
conservative U. S. Senator Jesse Helms, vouch for the good character of
Jerry Falwell. An advertising
agent for Campari testified that his company had nothing to do with
the parody ad and was very upset by it. A Moral Majority
executive confirmed that Falwell was seriously distressed when he first
saw the parody ad. A doctor who
treated Flynt testified that he was manic and heavily medicated at
the time of his deposition. Still, in the end, the trial was
largely a two-man show: evangelist Jerry Falwell versus pornographer
Larry Flynt.

Grutman told the
jury in his closing argument that "the eyes of the country are on
Roanoke." The jury had a chance to stand up for decency and
civility. Grutman warned against "letting loose chaos and
anarchy." "Are you," Grutman asked, "going to turn America into
the Planet of the Apes"?

On December 8, Judge
Turk instructed the jury on the libel and intentional infliction of
emotional distress claims. He threw out the appropriation claim
on the ground that Falwell's name and likeness had not been used to
promote a commercial product. Judge Turk told jurors that for
there to be a defamation the defendant must have made false statements
about the plaintiff that were "reasonably understood as real
facts." The intentional infliction of emotional distress claim,
on the other hand, required no such believability; it was enough if the
defendant intended to inflict distress on the plaintiff and that his
expression was outside accepted bounds of decency.

The jury of eight
women and four men returned with their verdict later that day.
The jury concluded that the parody ad could not be understood as
factual, and thus Falwell's libel claim failed. The jury did,
however, decide that Larry Flynt and Hustler Magazine intended to
inflict cause Falwell emotional harm and did so in a way that offended
decency. The jury awarded Falwell $100,000 in compensatory
damages and $100,000 in punitive damages. Given the judge's
instructions, any other verdict would have been a surprise.

On to the Supreme Court

Flynt's defense lawyer, Alan Isaacman

Initial
appeal rounds went to Falwell. A three-judge panel of the Fourth
Circuit Court of Appeals, based in Richmond, unanimously upheld the
jury's damage award. The court relied heavily on Flynt's
testimony that he intended through his ad parody "to assassinate"
Falwell's character.The full appeals court turned down a request for
rehearing en banc on a vote
of 6 to 5. Judge J. Harvie Wilkinson, a respected conservative
jurist, wrote a dissent from the decision not to rehear the case
in which he warned that the precedent may stifle political satire which
"tears down facades, deflates stuffed shirts, and unmasks hypocrisy."

Flynt's
attorneys, Alan Isaacman and David Carson, filed a petition for
certiorari in the United States Supreme Court. After some initial
reluctance caused by the distasteful nature of the publication and
parody ad, institutions and organizations supporting a free press came
to Hustler's aid in the form
of amici briefs. Among the groups sending arguments to the
Supreme Court were The Richmond Times, Reporters Committee for a Free
Press, and the Association of American Editorial Cartoonists. On
March 20, 1987, the Court announced that it would hear arguments in Hustler Magazine vs. Jerry Falwell.
Free speech supporters saw the case as an opportunity for the Supreme
Court to expand upon its assertion of fact (not protected if false,
damaging to another's reputation, and made recklessly) / expression of
opinion (protected speech) distinction.

On the
cold morning of December 2, 1987, spectators began lining up outside
the Supreme Court building. Jerry Falwell and his wife took seats
in the front row of the spectator section of the full courtroom.
Ten minutes before arguments were scheduled to begin, Larry Flynt
rolled in through a side-entrance. The eight justices (one seat
was vacant at the time) took their seats at the bench. Chief
Justice Rehnquist nodded to Alan Isaacman, standing behind the podium,
and announced, "Mr. Isaacman, you may proceed whenever you're ready."

Over
the next half-hour of oral argument,
attorney Isaacman deftly handled a steady stream of questions from the
bench. Isaacman conceded that the state has an interest in
protecting people from emotional distress, but he added, "If
Jerry Falwell can sue because he suffered emotional
distress,
anybody else whose in public life should be able to sue because they
suffered emotional distress. And the standard that was used in this
case--Does it offend generally accepted standards of decency and
morality?--is no standard at all. All it does is allow the punishment
of
unpopular speech." Asked what public interest the parody ad could
possibly serve, responded: "Hustler has every right to say that
somebody
who's out there campaigning against it saying don't read our magazine
and we're poison on the minds of America and don't engage in sex
outside of wedlock and don't drink alcohol. Hustler has every right to
say that man is full of B.S. And that's what this ad parody says."

Norman Grutman
followed Isaacman to the podium. Grutman opened his argument with
the words, "Deliberate, malicious character assassination is not
protected
by
the First Amendment to the Constitution." He struggled with
questions from justices about how a clear line might be drawn between
the Campari parody ad and other hard-hitting political cartoons and
satire. Grutman suggested: "If the man sets out with
the
purpose of simply making a legitimate aesthetic, political or some
other kind of comment about the person about whom he was writing or
drawing, and that is not an outrageous comment, then there's no
liability." Justice Scalia and several other justices appeared
unconvinced. Scalia asked: "I don't know, maybe
you
haven't looked at the same political cartoons that I have, but some of
them, and a long tradition of this, not just in this country but back
into English history, I mean, politicians depicted as horrible looking
beasts, and you talk about portraying someone as committing some
immoral act. I would be very surprised if there were not a number of
cartoons depicting one or another political figure as at least the
piano player in a bordello." Justice O'Connor also was concerned
with providing clear guidance to satirists of all sorts: "In today's
world, people
don't
want to have to take these things to a jury. They want to have some
kind of a rule to follow so that when they utter it or write it or draw
it in the first place, they're comfortable in the knowledge that it
isn't going to subject them to a suit." Grutman had no real
answer.

At the heart of the First Amendment
is the recognition of the
fundamental
importance of the free flow of ideas and opinions on matters of public
interest and concern....[I]n the
world of debate about public affairs, many things done with motives
that
are less than admirable are protected by the First Amendment. '"Debate
on public issues will not be uninhibited if the
speaker must
run the risk that it will be proved in court that he spoke out of
hatred..." Thus while such a bad motive may be deemed controlling for
purposes
of tort liability in other areas of the law, we think the First
Amendment
prohibits such a result in the area of public debate about public
figures.

...[O]ut
of nowhere my secretary buzzes me, saying, "Jerry Falwell is here to
see you." I was shocked, but I said, "Send him in." We talked for two
hours, with the latest issues of Hustler neatly stacked on my desk in
front of him. He suggested that we go around the country debating, and
I agreed. We went to colleges, debating moral issues and 1st Amendment
issues — what's "proper," what's not and why.

In the years
that followed and up until his death, he'd come to see me every time he
was in California. We'd have interesting philosophical conversations.
We'd exchange personal Christmas cards. He'd show me pictures of his
grandchildren. I was with him in Florida once when he complained about
his health and his weight, so I suggested that he go on a diet that had
worked for me....

My
mother always told me that no matter how repugnant you find a person,
when you meet them face to face you will always find something about
them to like. The more I got to know Falwell, the more I began to see
that his public portrayals were caricatures of himself. There was a
dichotomy between the real Falwell and the one he showed the public.

He
was definitely selling brimstone religion and would do anything to add
another member to his mailing list. But in the end, I knew what he was
selling, and he knew what I was selling, and we found a way to
communicate....

I'll never admire him for his views or his
opinions. To this day, I'm not sure if his television embrace was meant
to mend fences, to show himself to the public as a generous and
forgiving preacher or merely to make me uneasy, but the ultimate result
was one I never expected and was just as shocking a turn to me as was
winning that famous Supreme Court case: We became friends. (2)